There are few things in life that seem as mundane and benign as the simple act of doing household chores like laundry. Yet this routine chore, done for her husband, was the source of Barbara Brandes’ unwitting exposure to asbestos that ultimately caused her death decades later.

From 1971 until 1975, Barbara Brandes’ husband Ray worked as an operator at the newly-constructed Atlantic Richfield Company (ARCO) Cherry Point oil refinery in Ferndale, Washington. Defendant Brand Insulations contracted to perform the insulation work during the construction of the ARCO refinery in 1971 and 1972. At a time when there could be little doubt that the world knew asbestos was dangerous and carcinogenic—after the enactment of the Occupational Safety and Health Act and the genesis of the environmental revolution it epitomized—Brand used asbestos insulation in its work at the Cherry Point refinery without warning workers or taking any precautions to reduce hazardous asbestos exposures generated by Brand’s insulation work.

During the early 1970s, Brand insulators worked on-site at the Cherry Point refinery fabricating and installing insulation in the areas where Ray Brandes worked as an operator. The dust generated by Brand’s insulation activities contaminated Ray’s clothing with asbestos fiber. He was also exposed to asbestos when he and other ARCO employees removed the insulation materials Brand had installed when performing repairs to equipment and pipe.

At the end of each shift Ray worked at the Cherry Point refinery, he would return home in the clothes he had worn to work. Barbara would launder that clothing several times a week. When she shook the clothes out before putting them into the washer, asbestos fiber was released and dispersed into the air, exposing Barbara to invisible, imperceptible carcinogenic dust.

More than 40 years after Ray left the ARCO refinery, Barbara was diagnosed in June of 2014 with malignant pleural mesothelioma, a terminal cancer of the lining of the lung. At the time of her diagnosis, Barbara was advised by her physicians that her life expectancy was likely one year. Barbara succumbed to her mesothelioma on April 19, 2015, the evening before closing arguments in her trial against Brand Insulations.

The case was tried over two weeks in April in King County Superior Court before Judge William Downing. Plaintiffs were represented by Tom Hart and Kaitlin Wright of Bergman Draper Ladenburg Hart, PLLC. Brand Insulations, Inc. was represented by David Shaw and Malika Johnson of Williams, Kastner & Gibbs, PLLC. Barbara was 80 years old at the time of trial. The jury found that Brand was negligent, and that Brand’s negligence was a proximate cause of Barbara’s mesothelioma. The verdict included non-economic damages in the amount of $3,500,000.

Discovery Hurdles

One of the challenges in this case was locating witnesses capable of testifying to Ray Brandes’ employment and exposures at the Cherry Point refinery. Due to health issues, Ray was unable to testify or to recall the names of his coworkers so that they could be contacted and interviewed. An ad placed in The Bellingham Herald led to identification of Ray’s former coworkers, some of whom remembered working with him at the refinery back in the 1970s. An ARCO employee who responded to the ad testified at trial, and was one of the most compelling witnesses in the case as he was able to provide direct testimony regarding the work practices and exposures Ray Brandes experienced while Brand was working in his vicinity.

Liability Issues

In pretrial motions practice, the trial court granted summary judgment dismissing Plaintiff’s common law product liability claim against Brand, leaving negligence as the sole theory of liability for trial. Plaintiffs presented evidence that Brand had won the insulation subcontract with the general contractor for construction of the Cherry Point facility by coming in with the lowest lump-sum bid for the job. Brand contracted to perform “installation of thermal insulation of columns, heat exchangers, vessels, reformers, tanks, and piping in the various refinery units” at Cherry Point, procuring and installing all insulation materials on equipment and on the miles of piping required to be insulated throughout the refinery.

Brand offered testimony from Michael McGinnis, the project engineer who coordinated the Cherry Point job on behalf of Brand. Mr. McGinnis testified that he was just 21 years old when he traveled from Chicago to Ferndale to oversee the job, and conceded that he was equipped only with a high school education and on-the-job experience gained from his work as an apprentice insulator for Brand. On cross-examination by Mr. Hart, Mr. McGinnis acknowledged that the Cherry Point project was Brand’s largest dollar-value job in the company’s history by orders of magnitude. Mr. Hart also elicited from Mr. McGinnis on cross-examination the concession that no one at Brand had reviewed then-applicable Washington regulations identifying asbestos as a hazardous dust and requiring industrial hygiene controls to reduce exposures, nor did Brand make any effort to comply with those regulations.

Plaintiffs offered testimony from workers at the Cherry Point refinery who explained that the work of Brand insulators in the various refinery units manipulating, cutting, sawing, and installing asbestos insulation products generated considerable dust. Additional witnesses explained that ARCO had initially requested an asbestos-free refinery, but the asbestos-free insulation failed, so Brand reverted to asbestos-containing insulation materials part-way through their work at Cherry Point. Under cross-examination by Mr. Hart, Mr. McGinnis conceded that Brand nonetheless never warned workers that they were using asbestos or took any measures to reduce asbestos exposures to bystanders like Ray Brandes.

Brand argued that it did not or could not have known of a risk of take-home asbestos exposure from the insulation work it performed at Cherry Point resulting in mesothelioma among family members of ARCO operators like Ray Brandes. Plaintiff’s expert pathologist Dr. Andrew Churg testified that Mrs. Brandes had malignant mesothelioma of the pleura or lining of the lung, and that her mesothelioma was caused by washing her husband’s asbestos-contaminated work clothing. Plaintiff’s expert industrial hygienist, John Templin, CIH, testified to the industrial hygiene measures and engineering controls available to Brand in the 1971-75 timeframe to protect against Ray and Barbara Brandes’ significant asbestos exposures resulting from Brand’s insulation work. Plaintiffs also called Dr. Barry Castleman who testified regarding the extensive body of scientific and medical literature published throughout the decades leading up to Barbara’s exposures in the early 1970s, which confirmed that asbestos exposure could cause fatal disease, including mesothelioma, and detailed methods of avoiding dangerous exposures to bystanders and family members of exposed workers. Brand called Francis Weir, Ph. D., and Joseph Holtshouser who testified regarding toxicology and industrial hygiene principles. Dr. Weir testified during cross-examination by Mr. Hart that other West Coast insulation contractors were researching the hazards of asbestos by the time Brand began its work at Cherry Point. Mr. Holtshouser testified to the dose reconstruction of Barbara’s asbestos exposures he had performed and opined that her exposures were minimal and insignificant.

Damages

Prior to her diagnosis, Barbara had undergone many rounds of chemotherapy in an attempt to slow the progression of her cancer and prolong her life. She was not a candidate for surgical resection of her tumor, nor was radiation therapy recommended. Barbara bravely pursued as aggressive a chemotherapy regimen as her body could tolerate and her oncologist would recommend. She had more than one bout with pneumonia and experienced many other side-effects from the chemotherapy. Plaintiffs elected to forego pursuit of economic damages related to Barbara’s medical treatment, and instead simply asked the jury to decide Barbara’s non-economic damages for her injuries, disability, inconvenience, loss of enjoyment of life, and pain and suffering.

Because Barbara passed away on the eve of closing arguments and submission of the case to the jury, Plaintiffs faced the prospect of quickly converting Barbara’s personal injury action to a survivorship action to allow the case to proceed. This was successfully accomplished and the jury was instructed as to the fact of Barbara’s passing, the change in the case caption, and that future non-economic damages were no longer to be considered in assessing Plaintiff’s damages. In closing, Ms. Wright and Mr. Hart brought together the story of Brand undercutting local insulation companies to win the Cherry Point contract, and Brand’s concomitant sacrifice of safety to maximize profit in the largest job it had ever undertaken. The jury was unanimous in its finding of Brand’s negligence.

Barbara is survived by her eight children and many grandchildren, great-grandchildren, and a great-great-grandchild. While Barbara’s deteriorating health prevented her from being present in the courtroom every day, her daughter Ramona Brandes attended trial and was able to observe her mother’s engrossment in the case even as she approached the end of her life. Ramona explained: “My tales of the trial in her last days were one of the things she sparked on, wanting to hear every last detail. She passed away the day before closing arguments, but I know her verdict is something she would have been so thrilled about because her win will help other families like ours fighting for their own justice.”

Thomas H. Hart, III, Partner – Bergman Draper Ladenburg Hart, PLLC

Tom Hart was a pioneer in asbestos litigation in the United States and continues work on behalf of injured shipyard workers, former Navy personnel, pipe fitters, carpenters and others ravaged by asbestos disease. Since 1980, Tom has successfully represented asbestos victims in over 40 States and Territories. Tom has won verdicts and settlements totaling hundreds of millions of dollars for his clients and their families. In 1986, Tom filed and served as Lead Counsel in the first Nation-wide Class Action Settlement for asbestos victims.

Kaitlin T. Wright, Associate – Bergman Draper Ladenburg Hart, PLLC

Kaitlin Wright joined Bergman Draper Ladenburg Hart as an associate in 2013 after graduating from Seattle University School of Law, magna cum laude. Prior to joining Bergman Draper Ladenburg Hart, Kaitlin externed with the Honorable Stephen J. Dwyer at the Washington Court of Appeals in Seattle. Kaitlin also worked during law school as a Rule 9 legal intern with the Snohomish County Prosecutor’s Office in Everett. In her two years at Bergman Draper Ladenburg Hart, Kaitlin has represented mesothelioma victims in litigation in Washington and Oregon and has tried cases to verdict in both states.

Today as we reflect on the tragic events which took place 11 years ago, we are relieved to learn of the news that the Federal Government is finally acknowledging what we, as representatives of many of these injured workers have suspected for many years- that exposure to the toxins around Ground Zero can cause cancer. We pray for all those who are sick and have died and for those who will continue to become ill as a result of this horrible attack.

The following article from NBC New York written by Brynn Gingras and Greg Cergol details the new coverage that those suffering from cancer are entitled to receive:

The federal government will now officially add dozens of cancers to the list of illnesses linked to the Sept. 11 attacks, making those who lived or worked near ground zero and later became sick eligible for financial payments, authorities said Monday.

Fourteen categories of cancers, a total of 50, will be added to the illnesses covered in the James Zadroga 9/11 Health and Compensation Act, the National Institute for Occupational Safety and Health announced.

The Zadroga Act — named after NYPD Detective James Zadroga, who died at 34 after working at ground zero — passed into law two years ago. Despite the hundreds of sick responders, the act did not cover cancer because of a supposed lack of scientific evidence linking cancer to ground zero toxins.

“We have urged from the very beginning that the decision whether or not to include cancer be based on science,” said Mayor Bloomberg in a statement, adding that the decision “will continue to ensure that those who have become ill due to the heinous attacks on 9/11 get the medical care they need and deserve.”

Eighteen-year FDNY veteran Jeff Stroehlein spent several weeks working at ground zero, and is certain the brain cancer he has been fighting for a year is linked to his work there. The father of three welcomes the financial help the federal government will now be offering first responders with cancer, but says it should have arrived much earlier.

“The fact is, the government has turned their back for 11 years now,” he said. “I saw no politicians digging on the pile. If you saw a politician that was sick or on the pile, or their kid was sick or on the pile, this would have been solved months ago.”

Two more scientific studies are expected to be released shortly, which will determine whether more cancers should be added to the list, Senators Charles Schumer and Kirsten Gillibrand said in a statement.

“Today’s announcement is a huge step forward that will provide justice and support to so many who are now suffering from cancer and other illnesses,” they said.

About 400 residents and rescue workers have died from cancer since 9/11, according to the New York Post.

With cancer included in the program more victims are likely to seek compensation, which could cause individual awards to be reduced as officials divide up the $2.77 billion fund.

“They’re going to add cancers, but are they going to add more money to the fund?” Thomas “T.J.” Gilmartin, who suffers from lung disease and sleep apnea, said to the Post. “It’s crazy. Every time, we gotta fight. It’s two years since Obama signed that bill, and nobody’s got 10 cents.”

Stroehlein is now cancer-free and feeling well. But at 48, after being forced to give up a job he loved and facing an uncertain future, he’s focusing on speaking to lawmakers for his lost comrades, many of whom lost their life savings in their fight to survive after 9/11.

He’s also troubled by the uncertainty future first responders may face.

“Do you want to give up your life for a government that turned around and didn’t support you?”

This is another post by frequent contributor Jon L. Gelman who practices law in New Jersey. The post speaks for itself – shockingly the US has still not banned asbestos. We haven’t mined it here since 2002, but we import it from Canada. The fact of the matter is that, as Jon points out “the US imports 99% of the asbestos it consumes from Canada.” In 2010 that was over 1,000 metric tons.

The US still has not banned asbestos. The recently released US Geological Survey just published the latest statistics reporting that 1,040 metric tons of asbestos, a known carcinogen and the cause of mesothelioma, Continue reading →

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This blog is written by the attorneys of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP, as well as our distinguished colleagues from across the country. Our firm is a full service Law Firm that has been representing the injured person and worker for over 80 years. We have individual departments and specialists concentrating in serious personal injury cases, workers’ compensation claims, occupational disease claims, social security claims and various other matters such as estate planning and state and municipal disability claims. Our attorneys are selected as Super Lawyer magazine Super Lawyers year after year. In 2009 and 2010 our firm had 100% of the Super Lawyers named in Workers’ Compensation in the New York metro area. For more information about our firm and our attorneys, please visit our firm website.

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